Family Courts Bill Won’t Deliver Open Justice and Threatens Freedom of Expression, says NS

Following a series of meetings last week with Bridget Prentice, Minister for Justice,  together with Ministry of Justice legal advisors,  and with MPs on the Committee scrutinising the Children Schools & Families Bill, the NS remains deeply concerned by the Bill’s proposals for reporting of family courts and their adverse impact upon freedom of expression.

The NS believes that the intention of increased transparency has been lost in the Bill’s drafting, that the aim of achieving privacy for the families has been conflated into a renewed regime of secrecy which will not only fail to deliver the desired public accountability but will represent a major reduction in what can now be lawfully published, and will actually further reduce public debate and discussion of the family justice system.

In a Memorandum submitted to the Bill Committee this week, the NS says “The media have major concerns in relation to the reporting provisions of the Bill which as drafted  will prevent the publication of material wholly unconnected with the proceedings,  including material which at present could be lawfully published. The Bill will thus not only not achieve any increase in openness and confidence in the family courts but will have a highly detrimental impact in terms of freedom of expression and will infringe  Article 10 rights.”

The NS points out that the Bill as drafted is not restricted to impacting upon reports of actual proceedings: its effect would be that  to publish any article referring to family proceedings, even if derived entirely from material already in the public domain and even if the parties were not identified, would be a contempt, if it was not derived from an “authorised news report”.

The blanket ban upon publication of information identifying anyone “connected with” or “referred to” in the proceedings will continue indefinitely and for all purposes – reversing the important House of Lords judgment in Clayton V Clayton, and despite the Government’s statement that it would not do so. The NS believes this could lead to absurd results – such as not being able to (ever) name the Judge presiding over the case. It also means that all witnesses (apart from paid expert witnesses)– social services officials, local authority officers, police, teachers, will all have automatic anonymity, even in cases where disclosure of their identity would not identify the child or other parties to the proceedings.

The NS has urged an overhaul of the Bill so as to adopt as a model the reporting restrictions as applied in the youth courts and has  proposed amendments which would ensure automatic anonymity for the families involved in the proceedings, with a discretion for the court to extend anonymity for other witnesses if this was necessary for the safety of any person, for the welfare of a child or vulnerable adult, or in the interests of justice, and to also ensure that the court would retain power to order the non-publication of particular evidence (for example sensitive personal /medical reports). In addition, the NS points out, the  2009 Rules already empower the court to exclude the media from all or part of the proceedings

The NS Memorandum states: “There is no agenda on the part of the media  to be able to identify children, or immediate parties to the proceedings” “There is no dispute over the need to maintain the privacy of the families who are the subject of the proceedings . Others involved, though, have no claim to a right of “privacy”  -  the anonymity of non-parties is one of the foremost characteristics of  the enshrined nature of secrecy in the family courts which led to the failing of public confidence in the family courts”

“It is wrong to suggest that the interests of the families are best met by a system of secret justice.” “In no other court is there considered to be an inherent tension between the proper administration of justice and open justice – in fact, quite the reverse”

The NS Memorandum will shortly be published on the Parliamentary website for the Bill Committee.

For further information, please contact Sue Oake, PERA Department, on 0207 632 7463 or sue_oake@newspapersoc.org.uk.